Representing the 3rd District of Kansas

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Washington, D.C. – This evening, the House Appropriations Committee unanimously adopted language in the manager’s amendment to the Financial Services and General Government Appropriations Bill for Fiscal Year 2018 offered by Representative Kevin Yoder (R-KS) that would add the substance of his Email Privacy Act to the bill. The adoption in today’s markup follows February’s unanimous vote in the House of Representatives to pass Representative Yoder’s stand-alone bill, which modernizes federal law with respect to Americans’ digital privacy rights by applying a warrant-for-content standard to obtaining all emails, text messages, or data stored on the cloud.

“Combined with the Senate’s lack of urgency on digital privacy issues, the disturbing news that the SEC has begun subpoenaing emails in contravention of US v. Warshak means we have to act,” Rep. Yoder said. “Americans have a reasonable expectation of privacy in their emails and text messages, and if the Senate and the SEC refuse to recognize that, Republicans and Democrats in the House will work together to force their hand by adding this language to our must-pass spending bill.”

In February of this year, the Securities and Exchange Commission (SEC) sought to obtain email content from Yahoo stored in an account owned by a defendant in a securities fraud case using only an administrative subpoena. This goes against the legal precedent established by a Sixth Circuit decision, United States v. Warshak, and the House-passed Email Privacy Act, which both establish the principle that internet users have a reasonable expectation of privacy in their email content and that the government must obtain a warrant to access email content.

By attempting to subpoena these emails and attempting to exploit outdated digital privacy laws, the SEC is breaking with recent practice at the Commission under former-Chairwoman Mary Jo White who testified before Congress that the SEC was adhering to Warshak under her leadership. In April 2015, former-Chair White revealed to Rep. Yoder during a line of questioning in a Financial Services Appropriations Subcommittee hearing that the SEC was no longer subpoenaing Americans’ email content.

“The SEC’s recent attempt to get around the Fourth Amendment demonstrates the urgent need for serious reform of the Electronic Communications Privacy Act,” Chris Calabrese, Vice President for Policy at the Center for Democracy and Technology (CDT), said. “The Email Privacy Act would provide the strong privacy protections Americans deserve for their electronic communications such as email.”

“Congressman Yoder's Amendment to the Financial Services Appropriations Legislation will prevent the IRS, CFPB and SEC from using funds to attempt to read Americans emails and other digital content without a warrant,” Katie McAuliffe, Federal Affairs Manager for Americans for Tax Reform (ATR), said. “Until the Electronic Communications Privacy Act is updated by passage of the Email Privacy Act, the ECPA has a loop hole that some government agencies claim allow them to dig into a person's private documents without a warrant. This is not what was intended by the Fourth Amendment. Americans for Tax Reform & Digital Liberty support the inclusion and passage of Congressman Yoder's Amendment.

“Though the Fourth Amendment was written before the Internet was invented, it applies no less to Americans’ sensitive digital information,” Neema Singh Giuliani, Legislative Counsel for the American Civil Liberties Union (ACLU) , said. “We applaud the committee for making clear that covered government agencies, like the IRS, can only demand email and other content information from providers with a warrant. We urge Congress to pass this provision and other reforms, such as the Email Privacy Act, to ensure that Americans’ privacy is protected in the digital age.”